United States District Court, D. Oregon
OPINION and ORDER
MICHAEL J. McSHANE, District Judge.
This Court is asked to conditionally certify plaintiffs' action as a representative collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19. Because plaintiffs have provided substantial allegations that the potential putative collective action members were together the victims of a single decision, policy, or plan, this Court finds that these members are "similarly situated" under 29 U.S.C. § 216(b). Thus, plaintiffs' Amended Motion for Conditional Collective Action Certification [#63], is GRANTED IN PART and DENIED IN PART as follows.
STANDARD OF REVIEW
The FLSA requires that all non-exempt employees receive compensation at "one and one-half times the regular rate" for hours worked in excess of forty hours in a workweek. 29 U.S.C. § 207(a)(1). If an employee claims that an employer has violated this overtime provision, that employee may bring an action against the employer on "behalf of himself... and other employees similarly situated." 29 U.S.C. § 216(b).
The term "similarly situated" is not defined by statute or within precedential case law. Chastain v. Cam, No. 3:13-cv-01802-SI, 2014 WL 3734368, at *1 (D. Or. July 28, 2014) (citations omitted). However, the majority of courts, including those within this district,  apply a two-tier process to determine whether the putative collective action members are "similarly situated." See Margulies v. Tri-Cnty Metro. Transp. Dist. of Or., No. 3:13-cv-00475-PK, 2013 WL 5593040, at *15 (Oct. 10, 2013) (citations omitted).
Under the first tier, also referred to as the "notice stage, " this Court preliminarily determines whether the putative members are "similarly situated." Id.; see Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). At this first tier, the Court employs a lenient standard "that typically results in certification." Margulies, 2013 WL 5593040, at *15 (citations and internal quotation marks omitted). The named plaintiffs need only produce "substantial allegations that the putative members were together victims of a single decision, policy, or ban." Thiessen, 267 F.3d at 1102 (citation and internal quotation marks omitted).
If plaintiffs meet their burden, the Court conditionally authorizes a FLSA collective action, orders that a Notice be sent to all putative collective action members, and sets a deadline for such members to join the suit by filing consents to sue. Margulies, 2013 WL 5593040, at *15; see also Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000) ("[A] district court may authorize the named plaintiffs in a FLSA collective action to send notice to all potential plaintiffs... and may set a deadline for plaintiffs to join the suit by filing consents to sue." (citations omitted)).
The Court may reject a conditional certification where the class is too broad, or the duties of different class members are too varied. See, e.g., Mackenzie v. Kindred Hasps. E., L.L.C, 276 F.Supp.2d 1211, 1221 (M.D: Fla. 2003) (declining to certify a proposed collective action in part, because the proposed class was "overbroad"). However, a plaintiff is not required to show that his or her position is identical to the positions held by the putative class members. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208 1217 (11th Cir. 2001) (citation omitted). Under the second tier, the "decertification stage, " this Court, upon motion by a defendant, applies a more stringent standard to determine whether the conditionally certified collective action should be decertified. Chastain, 2014 WL 3734368, at *2; Margulies, 2013 WL 5593040, at *15. To make this determination, this Court reviews several non-exhaustive factors, including: (1) the specific employment conditions and duties of the individual plaintiffs; (2) any defenses asserted by or available to the defendant which appear to be individual to each plaintiff; (3) fairness; (4) procedural considerations; and (5) whether plaintiff made any required filings before instituting the suit. Chastain, 2014 WL 3734368, at *2 (quoting Morden v. T-Mobile USA, Inc., No. C05-2112RSM, 2006 WL 2620320, at *2 (W.D. Wash. Sept. 12, 2006)).
BACKGROUND AND DISCUSSION
This proposed collective action arises out of alleged violations of the FLSA. The named plaintiffs (Scott, Mord, Moreno, Heflin, Simpson, and Wilson) were employed by defendant Seneca Sawmill Company ("Seneca") in Eugene, Oregon. The plaintiffs contend that they (and potentially other "similarly situated" Seneca employees) were not paid for all of the hours they worked because they were together victims of a single policy or plan of the defendant that violates the FLSA. Defendant denies the allegations and also contends that plaintiffs have not carried their burden to show that the putative members are "similarly situated" enough for FLSA conditional certification.
Ultimately, because defendant's alleged timekeeping policies were potentially applicable to all "lumber production" employees, this Court concludes that plaintiffs have made a sufficient showing that the putative class is "similarly situated" enough for conditional class certification. Although defendant's arguments against conditional certification were not persuasive, this Court does take note and acknowledges defendants' concerns that plaintiffs only established a minimal factual foundation, and when this Court is confronted with De certification Motions following discovery, these considerations will be reviewed in light of increased knowledge and under a more stringent standard. See Goudie, 2008 WL 4628394, at *9.
On April 13, 2015, Oral Arguments regarding Plaintiffs Amended Motion to Certify the Class Conditional FLSA [#63] and associated issues were heard by this Court. Alan Leiman and Drew Johnson were present as plaintiffs' counsel. Frederick Batson was present at defendant's counsel. The Court issued the following Orders from the bench as described on the record and as further delineated by written Minute Order [#97]:
Plaintiffs' Motion to Certify the Class Conditional FLSA [#63] was GRANTED in part, as stated on the record [#97] and as further defined in this Opinion & Order, which serves as the formal decision on the motion.
In regards to the Defendant's Objections to Plaintiffs' Proposed Notice to the Putative FLSA Class [#83], the Court ordered the following for the reasons stated on the record:
As to Defendant's Objection No. 1: DENIED - The Notice may use the earlier date of August 20, 2011.
As to Defendant's Objection No.2: GRANTED - The Defendant's proposed alternative language found on page 6 of their brief [#83] shall be used in the Notice.
As to Defendant's Objection No.3: GRANTED - However, the website proposed by the Claims Administrator must be reviewed by Defendant's counsel prior to being posted in the internet.
As to Defendant's Objection No.4: GRANTED - The Defendant shall not be compelled to produce phone numbers of any current or former employees within the potential class.
As to Defendant's Objection No.5: GRANTED - The language objected to by the Defendant on page 8 of their brief [#83] shall be struck from the Notice.
As to Defendant's Objection No.6: GRANTED - The Defendant is not obligated to post notice in any public areas.
Defendant's Motions for Partial Summary Judgment Against the Claims of Plaintiff David Scott [#86], for Partial Summary Judgment Against the Claims of Plaintiff Weston Mord [#88], for Partial Summary Judgment Against the Claims of Plaintiff Simpson [#91], and for Partial Summary Judgment Against Claims by Plaintiff Kristan Wilson [#93] were all DENIED but with leave to refile later, for the reasons as stated on the record.
Defendant's Motion to Apply Intermediate Standard to Plaintiffs Motion for Conditional Certification of an FLSA Class [#24] was DENIED as moot, as it applied primarily to the Plaintiffs first Motion for Conditional Certification.
Also during the April 13, 2015 hearing, the attorneys for the parties were ordered to confer regarding the definition and scope of the potential conditional class to be notified. They were also ordered to submit a proposed case management schedule and trial date for the Court to consider during a Status Conference, which was held on April 22, 2015. [#98].
During the April 22, 2015 Status Conference, Drew Johnson was present as counsel for plaintiffs. Frederick Batson was present as counsel for defendant. The following case management schedule was agreed to by the parties and was adopted by the Court:
Defendant is to produce employee contact to Plaintiff by 5/8/2015.
Plaintiff is to mail notices by 5/22/2015.
The Opt-in deadline is 8/20/2015.
Discovery is to be completed by 2/26/2016.
Motions on Class Decertification are due ...